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Focus: Family Responsibility Office facing liability

Trial to consider whether agency has duty of care to recipient

November 4, 2013|Written By Judy van Rhijn

While clients of the Family Responsibility Office have sought legal redress against it in the past, none have succeeded. The case of Ashak v. Ontario (Family Responsibility Office) now proceeding to trial looks set to be the first one to test the limits of the office’s defences. Legal observers, however, are torn between a desire to motivate the agency to improve its practices and a concern that the prospect of litigation may affect its performance.

‘If this becomes an avenue to deal with this, people will use it,’ says Christine Marchetti.

It’s an unchallenged fact that the office has an enormous task to perform in the collection of support payments. “I can’t even imagine the enormity of the task,” says Christine Marchetti of Stanchieri Family Law. “That being said, there are a lot of people who are dissatisfied with how their individual cases are dealt with.”

The office currently has a caseload of approximately 180,000 cases and about 380,000 clients. It has recently changed to a case-management model that allows clients to have direct access through a caseworker, a manager, the director or the assistant deputy minister when they’re unhappy with the service they receive. However, in the event of a mistake with no possibility of recovery, there’s no recourse except to try the courts. Past cases, however, have been unsuccessful as the courts found the organization wasn’t a public entity that owed a duty of care to private citizens in those particular circumstances.

In that case, the plaintiff mother filed a support order with the office that the husband ignored. He was reportedly living in Iraq, a country that has no reciprocal agreement with Ontario. Eventually, the government suspended his Canadian passport, a move that prompted him to make a surprise visit to the Family Responsibility Office. After several visits, he succeeded in persuading the agency to remove the suspension.

The agency’s officer involved said she had taken into account the urgent nature of his request to return to Iraq to remove his child and spouse to a place of safety in advance of the U.S. war on the country. Because of local custom, they were unable to travel without him. She also noted he had retained counsel, commenced a motion seeking to change the support order, and borrowed $5,000 required as a surety in the proceedings. He then left Canada and died in Iraq in 2004.

The mother brought an application to seek damages from the office for breach of duty; negligence; gross negligence; breach of fiduciary duty; and/or vicarious liability. The case has so far survived a motion for summary judgment in the Superior Court. The decision reached the Divisional Court, which split the appeal into two issues. One part proceeded to the Court of Appeal, which dismissed the appeal on June 6. The case is on track to proceed to trial probably in late 2014.

The office maintains that the wife, as a private citizen, has no cause of action against a public body. Justice Duncan Grace reviewed an extensive amount of case law on the issue when considering the motion for summary judgment. “In my view, a prima facie duty of care arises in this case from the legislative scheme and the interactions between FRO and Ms. Ashak,” he stated.

“It was close, direct, long-standing, and crucial to Ms. Ashak and her children. It was one which imposed on Ontario ‘an obligation to be mindful’ of Ms. Ashak’s legitimate economic interests.”

John Bruggeman of Kostyniuk & Bruggeman represents the plaintiff. He describes the case as a typical civil litigation matter regarding the duty of care and negligence. “We argued that there is a fiduciary duty of care to people on social assistance. The regular individual who is not on social assistance has the option of withdrawing support and pursuing it themselves. A person on social assistance does not have that option. They must go through the FRO.”

He believes litigation is a necessary avenue for those with complaints. “It came to light in the litigation that some representatives of the FRO handle 1,500 files each. You can’t expect a very high quality of work, so there is the prospect of other terrible decisions. And I think this was a terrible decision.”

Family lawyer Andrew Feldstein recognizes the problems inherent in such a large organization. “The problem is knowing what policies and procedures they have. A suspension of a passport can be done without the recipient even being involved and it can be rescinded without the recipient being involved. The FRO needs to consider whether it is obligated to give notice to the recipient and invite comments. In this case, it would have made a lot of sense to do that.”

Within the family law context, Marchetti believes that if the plaintiff is successful, there will probably be a lot more court challenges from “not just recipients but payers, too. If this becomes an avenue to deal with this, people will use it.”

Inconsistent payment

Trish booth2016-04-09 06:14

0

My ex's employer has deducted child support as ordered but fro has been completely inconsistent with payments! ! First 3 payments were $28.11 then jumped to $134 for a few months. After several complaints from me it started coming in the court ordered amount but randomly would drop down for a couple months then go back up. The past year it has never been the amount it should be. I had to get 3 jobs to support my family when fro has done who knows what with the balance of child support. This monthing my child support dropped back down to $38.11..my ex makes over $50000/ year. .I make $11000 working 3 jobs. Fro was my biggest mistake! !!

Access and support are totally separate. The custodial parent has no right to refuse access based on a lack of support payment. Your expectation that she use her kids as pawns against their father is sad. Kids only have one dad. My ex owes me about 36k plus section 7 expenses (one kid has had to attend a special needs school with a cost of 13k annually). I have never refused access or bad mouthed him to my kids.

Once the order goes to FRO, it is their job to enforce payment. This includes taking court action. Even if this weren't the case, many parents just can't afford it. So we are stuck waiting for FRO to wake up.

I agree with the feelings towards FRO and their lack of accountability but for the opposite reason. My ex is 25K behind in support, I have to work two jobs to support my children, and FRO does nothing. They say they can't confirm his address because he keeps moving to avoid them. The children visit every second weekend so we all KNOW where he lives...yet FRO says they can't "confirm" it, so they do nothing. Meanwhile I work more and can do nothing other than pay to take him to court...which means I have to work MORE! Useless. Good thing my taxes apy for them to sit around and look stupid.

[quote name="Heather Langdon"]I agree with the feelings towards FRO and their lack of accountability but for the opposite reason. My ex is 25K behind in support, I have to work two jobs to support my children, and FRO does nothing. They say they can't confirm his address because he keeps moving to avoid them. The children visit every second weekend so we all KNOW where he lives...yet FRO says they can't "confirm" it, so they do nothing. Meanwhile I work more and can do nothing other than pay to take him to court...which means I have to work MORE! Useless. Good thing my taxes apy for them to sit around and look stupid.[/quote]i don't believe u,if he didn't pay u over 2 years,u are still letting ur children to visit him?and taking him to court after? what a great mother!

Fro don't care at all , they have the attitude that they can do whatever they want to pay or. I've always paid my support but when I had to go off work to address a life threatening illness and got slightly behind they were sent doctors letters they still tried to take license and ruin me , I went to court because I was overpaying for 2 years, I didn't owe any arrears 6 months after judge made decision they were sent half of my pay because they didn't do there job and send my employer updated order.then they wouldn't give me my money back MR did nothing to help.the good ones who pay get treated awful

the fro is run by a bunch of idiots who don't know what they are doing I always pay my support the fro wanted to have my license suspended on the day of court they did not show up and wrote a letter that i had been making my payments regularly.

Two weak ago i purchased a home my mortgage was denied i was told the fro had filled a claim against me don't know what claim i have always paid my support in full a i contacted my MPP in Burlington instead of assist me she told me to hire a lawyer, now i have filled a complaint with the ombudsman i had to borrow at a very hight rate,instead of FRO admit they filled for claim against me they will waste tax payers money to be investigated in the end i win but at what cost

I think the FRO has no right to interfere of a family, I am still fighting them and due to them I have been evicted from three apartments and lost a potential job that was about to be offered to me but FRO sent this company garnishee papers...My Ex is purely money hungry and is living very comfortable in Sask. I tried to fight in court and was only making 11.00 per hour and the court doubled the payments as they look at the gross amt made and never takes into consideration the cost of living so they put me with deductions living below poverty...Try to complain to government officials and I get nowhere...FRO needs to be abolished..I can go on forever on this but will end it at this.

My ex-wife and I got along so much better when we rid ourselves of the Family Responsibility Office. She brought the kids over for visits and I paid her in cash. I also felt better because my children could see up front that I was paying to help them. We are still friends today and our children have a brighter future because of it.

Mr

trent vargus2016-04-07 03:38

+2

Yeah.. These guys don't care about people they make it seem that way... They ruin so many more lives than they bring solutions to. This is what they call their obligation to society. Take someones life and rub it into the ground to make sure they never recover again... All for getting married and trying to be happy. Evil comes to mind but it would be too minute a description for this office.

Perhaps the maintenance enforcement bodies should reconsider the power that they have been given by legislation - to be the sole decision makers concerning license and passport restrictions. If they allow the courts to make these decisions, they remove the potential for their own liability, and their clients would see it as a fairer decision making process.